Earlier this year, the Supreme Court agreed to hear West Virginia v. EPA, a case challenging the Environmental Protection Agency’s authority under the Clean Air Act to regulate greenhouse gases in certain ways. Several petitioners invoke the major questions doctrine, which holds that courts should not defer to agencies’ statutory interpretation on questions of “vast economic or political significance.” The Court’s decision could also revive the non-delegation doctrine—a nearly defunct principle that Congress cannot delegate to regulatory agencies in overly broad terms. Proponents of both doctrines contend that delegation to agencies enables members of Congress to evade accountability for difficult decisions. Accordingly, the theory goes, if Congress made more decisions itself, it would be more accountable because voters would reelect or vote their representatives out of office based on their support for specific policies.

ELC is representing scholars of congressional accountability as amici curiae who empirically refute this argument. The amici argue, first, that voters have little knowledge of, and form limited judgments about, their representatives’ records. Second, partisanship and lack of information inhibit voters’ ability to attribute responsibility for Congress members’ decision-making. Third, voters generally do not cast ballots based on incumbents’ individual policy stances. As a result, invigorating the nondelegation and major question doctrines will not significantly promote congressional accountability.

BACKGROUND

In 1970, Congress enacted provision 42 U.S.C. § 7411(d) of the Clean Air Act.  § 7411(d) authorizes the EPA to regulate emissions from existing power plants.  Based on this provision, the EPA issued its 2015 Clean Power Plan, which established guidelines for states requiring them to develop plans to limit plants’ harmful carbon dioxide emissions.  States and companies challenged this rulemaking.  They alleged that the EPA’s decision as an expert agency to set standards for specific pollutants usurped Congress’s role to choose the nation’s climate and energy policy, despite Congress delegating this policy-making to the agency over fifty years ago.

This argument is grounded in the nondelegation doctrine, a principle holding that Congress cannot delegate its legislative powers to administrative agencies.  The Supreme Court has not invoked nondelegation to strike down a congressional statute since 1935.  Now, eighty-six years later, the Supreme Court’s current 6–3 conservative majority has expressed interest in reconsidering the doctrine.  Its granting of cert in this case suggests that the Court is poised to revive it. 

One of the most common arguments for revitalizing the nondelegation doctrine theorizes that delegation is antidemocratic because voters cannot hold unelected agency staff accountable.  In other words, voters could not remove them from office.  If Congress delegated fewer policy decisions to agencies, it would increase accountability for poor policy outcomes.  Voters can democratically punish or reward their representatives for their stances at the ballot box.  

Relatedly, the Court may invoke the major questions doctrine to enforce non-delegation principles, as it did in King v. Burwell (2015).  This doctrine asserts that courts should not defer to agencies’ statutory interpretation of questions of “vast economic or political significance.”  Promoters of this doctrine similarly justify it on the assumption that voters hold members of Congress accountable for how they deal with major policy matters.

But a wealth of political science literature illustrates that voters generally lack the information necessary to hold members of Congress accountable for their roll-call votes or bill sponsorships.  More than half of voters do not know their representative’s name, and only a little over half were able to guess which party controls Congress.  Additionally, voters evaluate congressional representatives based on partisanship rather than objective evaluations of members’ voting records.  For instance, evidence strongly indicates that voters may hold congressional representatives from the president’s party accountable for disliked executive actions.  Without increased voter knowledge or evaluation of Congress members and their records, voters are unlikely to vote retrospectively by assessing an officeholder’s performance.  As a result, the expected accountability gains from reviving the nondelegation doctrine would be negligible.  At the very least, they do not support resuscitating this long-rejected theory.